Changes Needed to Pinterest’s DMCA Policy

I really enjoy the Pinterest site as do many of my family and friends but I am concerned that they will be forced to shut down for copyright infringement reasons. So, I took a look at Pinterest’s DMCA Policy and related terms and found lots of things they need to fix immediately.

1.     Pinterest’s DMCA Policy includes this sentence:

“Upon receipt of the Notice as described below, Pinterest will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Site.”

What is wrong with this?  Well, under the DMCA, if Pinterest receives a properly completed (effective) DMCA Notice, it MUST disable accesses or remove the content alleged as infringing. Pinterest has absolutely no “discretion” as it deems “appropriate” under DMCA to do anything else. This sentence only creates confusion and is technically incorrect.

2.     Its DMCA Policy on its webpage does not match the Designated Agent information it submitted to the Copyright Office here.

Looks like they forgot to update it between the time when it was originally filed 2 years ago and when they went live with their site in 2011. On its DMCA Policy page, it does not provide the name of its Designated Agent who is Ben Silberman (co-founder).  And, the email address on its DMCA Policy webpage is different than the email address it provided and filed with the Copyright Office. And, the street address and telephone number on its webpage is different than the address and telephone number it provided to the Copyright Office.

In order to qualify for the DMCA, Pinterest must designate an agent (a person) and provide the email address where this person will receive DMCA Notices and Counter-notifications.  It is required to file an updated Designated Agent Form if it changes. This requirement is at the heart of the DMCA safe harbors. Simple fix– file a modified Designated Agent form here. It will cost them $135 but that is the best $135 they will ever spend.

3.     It fails to include a DMCA “repeat infringer” policy. This is at the heart of the DMCA statute.

4.     It includes a potentially disastrous sentence when it says it:

“… will respond expeditiously to claims of copyright infringement committed using the Pinterest website (the “Site”) that are reported to Pinterest’s Designated Copyright Agent, identified in the sample notice below.” (bold emphasis added)

I am sure it doesn’t mean that infringement is committed by use of the Pinterest website, but that is what it says. This could get Pinterest into trouble with the courts because it may be used against them to prove it is a website devoted to inducing, encouraging, facilitating, fostering … infringement!  The storage safe harbor protects Pinterest against infringement “by reason of the storage at the direction of the user” as opposed to “infringement committed using the Pinterest website”.  At least one DMCA case has considered a related argument and it will be likely raised again in this context (see UMG v. Veoh).

And, this language may be used to infer that Pinterest has the right and ability to control the website thereby controlling the infringing activity which will make it ineligible for DMCA on that basis alone and may make it vicariously liable for copyright infringement.

Oh yes, the DMCA Notice is called just that – a DMCA Notice…(not a “sample notice”) and Pinterest doesn’t actually provide a “sample notice” but an electronic form of DMCA Notice (which is a very favorable thing to do to make it easier to file DMCA Notices).

5.      Its Privacy Policy needs to be revised.

Pinterest needs to add a provision that states it will use PII as may be required by the DMCA.  Why? Under DMCA, the ISP (Pinterest) must send a copy of the actual Counter-notification to the person lodging the DMCA Notice.  The Counter-notification contains a lot of PII about the alleged infringer and will violate Pinterest’s posted privacy policy. It should also include the standard “we will respond to subpoenas issued by a court of law” language to its privacy policy as well.

And, for all of Pinterest’s California users/subscribers, it fails to provide the California Privacy policy language and a soon to be required California mobile privacy policy as required by California law.

6.      Its Terms of Use need revision.

First, the link it gives to its copyright policy links to its privacy policy.  Obviously, no one checked to make sure it linked to the correct page.

Second, it should add language putting people on notice that it will terminate a user’s/subscriber’s account for any reason whatsoever specifically related to intellectual property issues so that Pinterest has the option to terminate for continued infringements outside of the DMCA regime.

A few simple changes will make this DMCA lawyer much more comfortable knowing her pins will not suddenly disappear one day when Pinterest is out of business due to paying other lawyers exorbitant amounts of money to defend it against claims of copyright infringement. Just ask the folks over at Veoh.